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California judge throws out state's lethal injection procedure

by Julie Small

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In this photo taken Tuesday Sept. 21, 2010, the death chamber of the new lethal injection facility at San Quentin State Prison. AP Photo/Eric Risberg

A Superior Court judge in Northern California Friday threw out the state’s revised protocol for lethal injections. The judge said prison officials failed to properly vet and adopt the new rules six years in the making.

Marin County Superior Court Judge Faye D’Opal says the state Department of Corrections and Rehabilitation failed to properly explain why it rejected the use of a single barbiturate as an alternative to California’s three-drug lethal injection method.

Attorney Sara Eisenberg persuaded the judge that prison officials had violated California law. "They never explained why they retained the three-drug protocol instead of switching to a single drug protocol that many other states are switching to, that their own internal consultant recommended, and that many members of the public, including medical professionals, recommended."

California injects a barbiturate to knock out the inmate, then a paralytic agent, and finally a lethal dose of potassium chloride to stop the heart. Anti-death penalty advocates warn that the use of the paralytic increases the risk that an inmate might be conscious during the execution — and may suffer excruciating pain.

Eisenberg represents Mitchell Sims, a California inmate condemned to die for murdering a 21-year-old pizza deliveryman in 1985. Eisenberg says that unless the state wins on appeal, it cannot resume executions until the Department of Corrections and Rehabilitation properly vets the new procedures.

Terry Thornton, a spokeswoman for the prisons, refrained from commenting until she sees the official ruling. "The Department of Corrections and Rehabilitation anticipates to receive the final judgment from the court soon. When we do we will thoroughly review it and evaluate our options at that time."

California has placed executions on hold for five years after a federal judge determined that the state wasn’t doing enough to ensure that inmates were unconscious during lethal injections. That judge also ruled that the execution chamber and training for the teams that work there are deficient. Prison officials adopted the new lethal injection practices to remedy those failings. The federal case returns to court later this year.